Citation Nr: 9935674
Decision Date: 12/22/99 Archive Date: 12/30/99
DOCKET NO. 94-43 576 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to a disability evaluation in excess of 50
percent for post-traumatic stress disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
William W. Berg, Counsel
INTRODUCTION
The veteran served on active duty from June 1943 to March
1947 and from May 1951 to April 1954.
When this matter was previously before the Board of Veterans'
Appeals (Board) in May 1999, it was remanded to the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri, for additional development. Following
the requested development, the RO in October 1999 denied
service connection for dementia and continued its previously
assigned rating of 50 percent for service-connected post-
traumatic stress disorder. The RO also denied entitlement to
a total compensation rating based on unemployability. The
matter is now before the Board for final appellate
consideration.
The veteran has been entitled to special monthly pension on
the basis of the need for the regular aid and attendance of
another person since April 1988. The veteran has also been
rated as incompetent for VA purposes since September 1985.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. The service-connected post-traumatic stress disorder is
manifested by painful, intrusive memories of combat
experiences in World War II, as well as by nightmares,
distress when exposed to stimuli that remind the veteran of
his combat experiences, social avoidance, and irritability
and anger that have hindered his ability to maintain gainful
employment.
3. The veteran's Global Assessment of Functioning due solely
to his service-connected post-traumatic stress disorder is
50. No more than considerable social and industrial
impairment due to service-connected post-traumatic stress
disorder has been shown.
4. Service connection is not in effect for the veteran's
dementia, which is manifested by difficulty with
concentration and his ability to calculate, confusion, and
tangentiality of thinking, as well as by impairment of his
immediate and short-term memory. At all times material to
this appeal, the veteran has been rated incompetent for VA
purposes based on his cognitive deficits.
CONCLUSIONS OF LAW
1. The criteria for a disability rating in excess of
50 percent for post-traumatic stress disorder have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.7, 4.130, Diagnostic Code 9411 (effective November 7,
1996).
2. The criteria for a disability rating in excess of
50 percent for post-traumatic stress disorder have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.7, 4.132, Diagnostic Code 9411 (effective before
November 7, 1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As a preliminary matter, the Board finds that the veteran's
claim for an increased rating is plausible and thus well
grounded within the meaning of 38 U.S.C.A. § 5107(a); see
Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of
entitlement to an increased evaluation for a service-
connected disability generally is a well-grounded claim).
The Board is satisfied that all relevant evidence has been
obtained with respect to this claim and that no further
assistance to the veteran is required in order to comply with
the duty to assist mandated by 38 U.S.C.A. § 5107(a).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity in civil occupations. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. Separate diagnostic codes identify the
various disabilities.
The record shows that the veteran's original claim for
service connection for post-traumatic stress disorder was
received in January 1994 and was initially denied by a rating
decision dated the following July. Following further
development of the record, however, service connection for
post-traumatic stress disorder was granted in a rating
decision dated in June 1997, and a 10 percent evaluation was
assigned under Diagnostic Code 9411, effective from
January 13, 1994, the date of receipt of the claim for
service connection. The veteran disagreed with this
evaluation, and a rating decision dated in October 1998
increased the rating to 50 percent disabling, effective from
January 13, 1994.
The veteran's claim for a higher evaluation for post-
traumatic stress disorder is an original claim that was
placed in appellate status by his disagreement with the
initial rating award. Furthermore, as held in AB v. Brown, 6
Vet. App. 35, 38 (1993), "on a claim for an original or an
increased rating, the claimant will generally be presumed to
be seeking the maximum benefit allowed by law and regulation.
. . . " The distinction between an original rating and a
claim for an increased rating may be important, however, in
terms of determining the evidence that can be used to decide
whether the original rating on appeal was erroneous and in
identifying the underlying notice of disagreement and whether
VA has issued a statement of the case or supplemental
statement of the case.
In these circumstances, the rule in Francisco v. Brown, 7
Vet. App. 55, 58 (1994) ("Where entitlement to compensation
has already been established and an increase in the
disability rating is at issue, the present level of
disability is of primary importance"), is not applicable to
the assignment of an initial rating for a disability
following an initial award of service connection for that
disability. Rather, at the time of an initial rating,
separate ratings may be assigned for separate periods of time
based on the facts found - a practice known as "staged"
ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999).
The service-connected post-traumatic stress disorder has been
evaluated under Diagnostic Code 9411 of the rating schedule.
Effective November 7, 1996, VA revised the criteria for
evaluating psychiatric disabilities. 61 Fed. Reg. 52,695
(1996). The new criteria for evaluating a service-connected
psychiatric disability are codified at 38 C.F.R. § 4.130.
Under the decision of the United States Court of Appeals for
Veterans Claims in Karnas v. Derwinski, 1 Vet. App. 308, 312-
13 (1991), where the law or regulation changes after a claim
has been filed or reopened but before the administrative or
judicial appeal process has been concluded, the version more
favorable to the appellant applies unless Congress provided
otherwise or permitted the Secretary of Veterans Affairs to
do otherwise and the Secretary did so.
Factual Background
The record shows that when hospitalized by VA from July to
September 1962 for complaints that centered on nervousness
and marital difficulties, the diagnosis was passive-
aggressive personality, passive-dependent type, with
emotional instability. It was reported that he had a history
of heavy drinking, although he had not drunk heavily recently
and claimed that he had quit drinking 15 months prior to
admission. A complete examination did not reveal any
psychosis, and a neurological examination revealed no gross
pathology. The veteran was then considered competent for VA
purposes.
On a mental status examination by VA in July 1975, the
veteran was somewhat tense and passive during the interview,
and his affect was flattened. Although there was no
looseness of associations, his judgment and insight were
poor. His peer relationships were poor, and he felt uneasy
around people. His temper was short and irritable. (He had
quit smoking.) He said that he no longer used alcohol but
admitted that he had used it excessively in the past. He
slept poorly but denied bad dreams. His memory was poor.
His intellect was low. He got depressed and sometimes had
crying spells. He wondered if life was worth living. He
denied any serious suicidal ideation. He denied auditory and
visual hallucinations, as well as delusions and phobias. His
major defenses were "fragile". He did not cope with
situational stress very well. His defenses were denial,
repression, withdrawal, and some somatization of complaints.
The diagnosis was chronic psychoneurotic anxiety reaction
with depression. He was competent to handle VA funds. His
incapacity was felt to be moderately severe from a
psychiatric standpoint. He was tense and agitated and had
trouble in the area of interpersonal relationships. The
examiner reported that he would have difficulty in sustaining
himself in a normal employment setting. In addition, he had
numerous physical complaints that made him more nervous and
that complicated his ability to work. He was felt to need
some psychotherapy and medication.
The veteran reported significant difficulties with anxiety
and depression on a psychological evaluation in June 1983 for
a Social Security disability determination. His wife and he
reported significant difficulties with stress tolerance and
problems with explosiveness. He was said to show rather poor
judgment in the handling of his personal affairs and was not
able to manage his own funds. Psychological testing
indicated an individual in a mildly mentally retarded range.
He showed significant variations in his intellectual
functioning within the testing. He showed a variety of signs
of chronic organic brain syndrome with dementia. He showed
poor stress tolerance and had frequent psychiatric
hospitalizations. His ability to manage his own funds was
significantly decreased, and it was felt that he would not be
capable of managing his own funds.
On a VA psychiatric examination in June 1985, it was reported
that the veteran recently had lost his ability to read and
write. His memory was very bad, and he was usually
distracted. On mental status examination, his attention span
was below average, and he could not perform simple
calculations. He had trouble remembering things. His affect
was flattened. His judgment and insight were poor. His peer
relationships were below average. His temper was irritable,
and his sleep pattern was restless. His intellect was
sluggish, and he got depressed and occasionally cried. He
denied any current suicidal ideation, but there was a history
of suicidal attempts. He denied auditory or visual
hallucinations, paranoia, phobias or delusions. He denied
specific guilt or anger. The diagnoses were organic brain
syndrome secondary to cerebral vascular problems, manifested
by deficits in judgment, intellect, memory, and affect; and
generalized anxiety with depression. He was felt to be
incompetent to handle VA funds.
Thereafter, the veteran was found to be mentally incompetent
by both VA and private examiners. In a statement received in
January 1997, the veteran's VA treating psychiatrist reported
that as a result of post-traumatic stress disorder, the
veteran suffered from anxiety, sleep disturbance, emotional
instability, and intrusive memories of combat. The physician
was of the opinion that the veteran still had clinically
significant post-traumatic stress disorder.
On a VA psychiatric examination in March 1997, the claims
file was reviewed by the examiner. The examiner concurred in
a diagnosis of post-traumatic stress disorder and indicated
that the veteran's symptoms of that disorder were impressive
on examination. The veteran's history of drinking throughout
the post war period until about 15 years previously,
apparently quite heavily, was said to be an attempt to push
away his painful thoughts, feelings and memories. The
veteran had become increasingly socially avoidant. He had
decreased interest in almost all previously pleasurable
activities. He was emotionally walled off, numbed and
detached. He stated that he did not feel comfortable with
anyone other than his wife. He had difficulty with
depression and anxiety and had made two previous suicide
attempts requiring hospitalization. He had much sleep
disturbance with frequent awakenings throughout the night.
He had difficulty with anger and irritability and was short-
tempered. It was reported that the veteran's first wife had
died and that his second marriage had lasted for more than
25 years and was supportive. It was reported that they went
to church twice a week but otherwise had very limited social
contact. The veteran had completed only the 5th grade and
stated that he had had more jobs than he could count. He
said that he did not stay at any job for very long because of
his anxiety and inability to get along with others.
On mental status examination in March 1997, the veteran's
mood was somewhat anxious. The examiner stated that the
veteran's cognitive abilities had been formerly assessed and
clearly showed obvious deficits in immediate and short-term
recall, ability to calculate, and ability to abstract. He
denied any current suicidal ideation. Dementia, as well as
post-traumatic stress disorder, was diagnosed. The examiner
stated that the veteran's difficulty with memory,
calculation, and abstraction appeared to be sufficiently
severe to warrant the diagnosis of dementia. The veteran had
a history of very minimal education and also described some
sort of catastrophic event associated with complications from
surgery that might be the source of his current dementia. He
also described drinking quite heavily for many years. All of
these, the examiner reported, might be the sources of his
cognitive deficits, as well as a chronic anxiety from post-
traumatic stress disorder. The examiner said that it was
unclear if it were a combination of all of these etiologies
or any one event or trauma in particular. The examiner
indicated that these cognitive deficits were probably long
standing and surely caused the veteran a great deal of
difficulty functioning in any work environment. With respect
to post-traumatic stress disorder, the examiner remarked that
the veteran clearly had difficulty with social isolation,
reexperiencing phenomena, and an inability to retain and
obtain employment through the years. The veteran was felt to
be incompetent for VA purposes because of his cognitive
deficits.
The veteran's spouse has consistently maintained that the
veteran has been very nervous all the time and had continuous
panic, depression and suicidal ideation. He did not like
crowds and got real panicky if he had to stand in a line
waiting for something, such as when shopping.
On VA psychiatric examination in January 1998, the claims
file was reviewed by the examiner. It was reported that the
veteran's clinical condition had not changed since his
examination in March 1997. The examiner stated that although
he had diagnosed post-traumatic stress disorder in March
1997, he felt at the time of the last examination, and
continued to feel, that the primary psychiatric diagnosis was
dementia. The veteran continued to have difficulty with
memory and concentration and has been deemed incompetent for
VA purposes. The veteran's spouse handled all of his
finances, and he clearly had much difficulty with confusion
during the course of the day because of apparently long-
standing dementia. The veteran also described, however,
symptoms indicative of post-traumatic stress disorder,
including painful, intrusive memories of his combat
experiences, nightmares recalling his combat experiences, and
distress when exposed to stimuli that reminded him of his
combat experiences. The veteran tried to avoid thoughts,
feelings and memories of combat by excess alcohol use until
15 years previously. However, all of his post-traumatic
stress disorder symptoms continued unabated after his
discontinuation of alcohol. The veteran was quite socially
avoidant, had decreased interest in almost all previously
pleasurable activities, was emotionally walled off, numbed
and detached, and had frequent difficulty with anxiety and
depression, including two suicide attempts. The veteran had
experienced much difficulty with sleep disturbance, anger and
irritability, concentration, hypervigilance, and an excessive
startle reaction. He had received episodic psychiatric care
from a VA medical center through the years and had been
diagnosed there with post-traumatic stress disorder. He had
not worked since about 50 years of age, stating at that time
that he was unable to continue working because of his anxiety
and his difficulty with focus, concentration and memory.
On mental status examination in January 1998, the veteran was
alert, oriented and cooperative. His mood appeared to be
neutral. He was quite pleasant but appeared to be confused
and often replied to questions in a tangential way. There
was no evidence of delusions or hallucinations. His
cognitive disabilities were again formally assessed and again
showed clear and obvious deficits in concentration,
calculation, and immediate and short-term memory. There was
no suicidal ideation. The diagnoses on Axis I were dementia,
most likely secondary to catastrophic anesthesia reaction and
possibly contributed to by prolonged alcohol abuse; and post-
traumatic stress disorder. A diagnosis was not entered on
Axis II. The Global Assessment of Functioning (or GAF) score
on Axis V was, in the examiner's estimation, 35 for the
veteran's dementia and 50 for his post-traumatic stress
disorder.
The examiner remarked that the Global Assessment of
Functioning was intended to be used in a "global" way; that
is, used to consider all of the veteran's psychiatric
diagnoses in their overall impact on his functioning. It was
therefore felt to be quite difficult, especially in the case
of dementia and post-traumatic stress disorder, to
distinguish between what level of disability was due to which
diagnosis. However, based on the symptoms given, it was
clear that the veteran's level of functioning was much more
severely limited because of his dementia; hence, the lower
Global Assessment of Functioning score assigned for dementia.
The examiner said that the veteran clearly described much
difficulty functioning in the job environment and with
keeping a job. The examiner stated that this appeared quite
likely due to his post-traumatic stress disorder alone, thus
warranting the GAF score of 50 for that disorder. In any
case, the veteran continued to be incompetent for VA purposes
and clearly would be unable to function in any job setting
currently due to his combination of dementia and post-
traumatic stress disorder.
In an opinion dated August 5, 1999, the veteran's VA treating
psychiatrist said that the veteran had service-connected
psychiatric disability with a diagnosis of post-traumatic
stress disorder and that due to the mental and emotional
instability caused by this psychiatric illness, the veteran
was unable to work.
In an addendum dated August 24, 1999, the examiner again
reviewed the claims file and commented on his January 1998
examination report. The examiner found that there was no
note of any intraoperative or postoperative anesthetic
complications following the veteran's surgical procedure in
1947. Rather, there were indications that the veteran was
alert and interactive within a few days of the surgery,
which, the examiner said, contradicted the veteran's report
that he had been in a coma for 20 days. The examiner said
that the prior opinion as to the veteran's dementia being
based on an anesthetic catastrophe was based on the veteran's
history alone. The documentation clearly contradicted that
history, and the examiner stated that this clearly made him a
very poor historian. It was felt unlikely that the veteran's
dementia was related to an inservice medical catastrophe, as
had been previously described. It continued to be the
examiner's opinion, however, that the veteran's GAF score
from dementia would be 35, which indicated impairment in
reality testing and communication and major impairment in
work and interpersonal capacities, as well as major
impairment in judgment and thinking. The examiner said that
the impairment due to post-traumatic stress disorder was
rated at 50, indicating serious symptoms, including serious
impairment in social, occupational, interpersonal
functioning, much social isolation, and an inability to
function in a work environment or to be able to keep a job.
Analysis
Under the rating formula for neurotic disorders in effect
prior to November 7, 1996, a 50 percent evaluation was
warranted when the ability to establish or maintain effective
or favorable relationships with people was considerably
impaired, and by reason of the psychoneurotic symptoms, the
reliability, flexibility and efficiency levels were so
reduced as to result in considerable industrial impairment; a
70 percent evaluation was warranted when the ability to
establish and maintain effective or favorable relationships
with people was severely impaired, and when psychoneurotic
symptoms were of such severity and persistence that there was
severe impairment in the ability to obtain or retain
employment. A 100 percent schedular evaluation required that
the attitudes of all contacts except the most intimate be so
adversely affected as to result in virtual isolation in the
community and that there be totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes (such
as fantasy, confusion, panic and explosions of aggressive
energy) associated with almost all daily activities resulting
in a profound retreat from mature behavior; the individual
must have been demonstrably unable to obtain or retain
employment. 38 C.F.R. § 4.132, Diagnostic Code 9411
(effective prior to November 7, 1996).
A 50 percent evaluation under Diagnostic Code 9411, as
amended, contemplates occupational and social contemplates
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships. A 70 percent evaluation under the newly
revised criteria contemplates occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); and an inability to establish and maintain
effective relationships. A 100 percent evaluation under the
newly revised rating criteria requires total occupational and
social impairment due to such symptoms as: gross impairment
in thought processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation, or
own name. 38 C.F.R. § 4.130, Code 9411 (effective November
7, 1996).
Whether the service-connected post-traumatic stress disorder
is evaluated under the new criteria or the old, however, the
veteran's symptomatology warrants no more than the 50 percent
rating currently assigned.
It is clear from the evidence of record that the more serious
mental disorder is the veteran's dementia, for which service
connection is not in effect. The recent examination
findings, viewed in the context of the other evidence of
record, shows that the post service dementia has had a
significant impact, indeed a predominant impact, on the
veteran's social and occupational functioning. His confusion
and impairment of his ability to calculate or remember, as
well as his impaired concentration, are such as to yield an
even lower GAF score than that assigned to the symptoms
resulting from his post-traumatic stress disorder. The
Global Assessment of Functioning is a scale reflecting the
"'psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.'"
Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th
ed. 1994) (DSM-IV)).
While it is true that the veteran appears to have serious
social and occupational impairment due solely to his symptoms
of post-traumatic stress disorder, this is contemplated in
the 50 percent evaluation assigned, whether considered under
the new rating criteria or the old. The rating schedule is
designed to compensate for average impairments of earning
capacity resulting from service-connected disability in civil
occupations. 38 U.S.C.A. § 1155. "Generally, the degrees
of disability specified [in the rating schedule] are
considered adequate to compensate for considerable loss of
working time from exacerbations or illnesses proportionate to
the severity of the several grades of disability."
38 C.F.R. § 4.1 (emphasis added). Moreover, prior to
November 7, 1996, poor contact with other human beings was
indicative of emotional illness, but social inadaptability
was evaluated only as it affected industrial inadaptability.
38 C.F.R. § 4.129 (effective prior to November 7, 1996).
During the course of the prosecution of this claim, the
veteran's psychiatric disability picture has in fact been
relatively consistent and shows that his dementia is his
predominant psychiatric impairment. The GAF score of 50
assigned to the veteran's post-traumatic stress disorder
alone is consistent with finding of considerable social and
industrial impairment under the old rating criteria. It is
also consistent with the symptomatology necessary for a
50 percent evaluation under the new rating criteria. The
symptoms clearly attributable to the nonservice-connected
dementia, primarily his cognitive and concentration deficits,
may not be considered in determining the appropriate level of
his service-connected evaluation. 38 C.F.R. § 4.14 (1999).
The Board therefore concludes that the preponderance of the
evidence is against an evaluation in excess of 50 percent for
service-connected post-traumatic stress disorder, in view of
the substantial psychiatric impairment that results from his
nonservice-connected dementia.
ORDER
An increased evaluation for post-traumatic stress disorder is
denied.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals